IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RITA J. DUVALL,

Plaintiff,

 Civil Action 2:12-cv-486

v. Judge Michael H. Watson

 Magistrate Judge Elizabeth P. Deavers

 

COMMISSIONER OF SOCIAL SECURITY,

Defendant. 

REPORT AND RECOMMENDATION

This matter is before the United States Magistrate Judge for a Report and

Recommendation on the Court’s October 2, 2012 Show Cause Order. (ECF No. 10.) For the

reasons that follow, the undersigned RECOMMENDS that the Court DISMISS Plaintiff’s

action pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. 

I.

On June 8, 2012, the Court granted Plaintiff’s Motion to Proceed Without Prepayment of

Fees, ordering the Commissioner to file and serve his Answer and a certified copy of the

administrative record within sixty days and Plaintiff to file her Statement of Errors within thirty

days after the Answer and transcript were filed. (ECF No. 2.) On August 14, 2012, the

Commissioner filed and served his Answer and certified copy of the administrative record. (ECF

Nos. 8 and 9.) Thus, Plaintiff’s Statement of Errors was due on or before September 14, 2012. 

Because Plaintiff failed to timely file her Statement of Errors, on October 2, 2012, the

Court ordered her to show cause within fourteen days why this case should not be dismissed with

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prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b). In the

Show Cause Order, the Court specifically cautioned Plaintiff that “failure to comply with [the

Show Cause Order] will likely result in dismissal of her action with prejudice.” (Oct. 2, 2012

Show Cause Order 1, ECF No. 10.) To date, Plaintiff has not responded to the Show Cause

Order. 

II. 

Under the circumstances presented in the instant case, the undersigned recommends

dismissal of Plaintiff’s action pursuant to Rule 41(b). The Court’s inherent authority to dismiss a

plaintiff’s action with prejudice because of his or her failure to prosecute is expressly recognized

in Rule 41(b), which authorizes involuntary dismissal for failure to prosecute or to comply with

rules of procedure or court orders. See Fed. R. Civ. P. 41(b); Chambers v. Nasco, Inc., 501 U.S.

32, 49 (1991) (noting that “a federal district court has the inherent power to dismiss a case sua

sponte for failure to prosecute” as recognized in Link v. Walbash R. Co., 370 U.S. 626, 629–32

(1962)). “This measure is available to the district court as a tool to effect management of its

docket and avoidance of unnecessary burdens on the tax-supported courts and opposing parties.” 

Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir. 1999). 

The Sixth Circuit directs the district courts to consider the following four factors in

deciding whether to dismiss an action for failure to prosecute under Rule 41(b): 

(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether

the adversary was prejudiced by the dismissed party’s conduct; (3) whether the

dismissed party was warned that failure to cooperate could lead to dismissal; and (4)

whether less drastic sanctions were imposed or considered before dismissal was

ordered.

Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008) (citing Knoll, 176

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F.3d at 363). “‘Although typically none of the factors is outcome dispositive, . . . a case is

properly dismissed by the district court where there is a clear record of delay or contumacious

conduct.’” Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).

III.

Here, the record demonstrates such delay and contumacious conduct. After Plaintiff

failed to file her Statement of Errors, the Court has ordered her to show cause why this case

should not be dismissed for prejudice for want of prosecution. This Order provided Plaintiff

with adequate notice of the Court’s intention to dismiss for failure to prosecute and supplied her

with a reasonable period of time to comply. It also provided her with an opportunity to show

cause why this case should not be dismissed with prejudice for want of prosecution. Because

Plaintiff has missed deadlines and disregarded Court orders, the undersigned concludes that no

alternative sanction would protect the integrity of the pretrial process. The undersigned

therefore RECOMMENDS that the Court DISMISS Plaintiff’s action under Rule 41(b). 

 IV. PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

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waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: October 25, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

 

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